IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

No. 02-60229 Summary Calendar __________________________

HEATHER PATRICE HOGROBROOKS, Plaintiff - Appellant,

versus

BALLY’S OLYMPIA L P, Defendant - Appellee.

___________________________________________________

Appeal from the United States District Court For the North District of Mississippi (No. 2:01-CV-22-EMB) ___________________________________________________ September 16, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM*:

Heather Patrice Hogrobrooks (Hogrobrooks) sued Bally’s Olympia

LP (Bally’s) for racial discrimination arising from termination of

her employment with Bally’s as a part-time blackjack dealer, in

violation of both Title VII of the Civil Rights Act of 1964 and

. Hogrobrooks also alleged Bally’s mandatory

Mississippi Gaming Commission filing regarding her termination was

per se defamation, and further alleged Bally’s violated the notice

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. requirements of the Consolidated Omnibus Budget Reconciliation Act

(COBRA). With the consent of both parties, the matter was referred

to a magistrate judge for decision pursuant to

(b)(4), Fed. R. Civ. P. 73, and Uniform Local Rule 73.1. The

magistrate judge granted summary judgment in favor of Bally’s on

all issues. Hogrobrooks attempts to appeal the grant of summary

judgment on substantive and procedural grounds, denial of various

discovery rulings, reference to a magistrate judge, and imposition

of sanctions resulting from unexplained tardiness to a court-

ordered settlement conference. After a review of the record, we

affirm.

I. Facts and Procedural History

The undisputed facts underlying the present appeal are as

follows. Hogrobrooks was hired by Bally’s as a part-time blackjack

dealer in June, 2000. On July 23, 2000, Hogrobrooks received a

verbal warning after she was told to pick up a player’s cards but

refused the instruction and talked back to her supervisor. On

September 26, 2000, after further warnings and problems,

Hogrobrooks employment with Bally’s ended with her unfavorable

termination for uncooperative behavior.

Plaintiff brought suit in federal district court and a

magistrate judge was assigned to handle pretrial, non-dispositive

matters. The parties eventually consented to the referral of this

cause for trial by the magistrate judge and it was so ordered by

the district court judge. During the course of the proceedings

2 below, the magistrate judge denied several of Hogrobrooks discovery

motions and two motions to vacate the order of reference. The

magistrate judge also sanctioned Hogrobrooks for arriving forty-

five minutes late to a court-ordered settlement conference.

On February 11, 2001, after the deadline for motions in the

case, Bally’s petitioned the court for leave to file a motion for

summary judgment and attached a proposed motion for summary

judgment. On February 17, 2001, prior to a ruling on the motion,

Hogrobrooks mailed correspondence to the magistrate judge informing

the court she would not be responding to Bally’s summary judgment

motion. The magistrate judge thereafter permitted filing of the

summary judgment motion and subsequently granted the motion on

March 7, 20001 with a clerk’s entry date of March 11, 2001.

II. Discussion

Appellant raises a litany of potential issues on appeal but

ultimately only presents two issues with sufficient legal analysis

to warrant consideration by the Court. First, Hogrobrooks argues

the magistrate judge erred procedurally by entering summary

judgment. Second, Hogrobrooks argues the magistrate judge abused

his discretion in sanctioning her for an unexplained tardy

appearance at a court-ordered settlement conference.

A. The Summary Judgment Ruling

Whether the district court correctly implemented the Federal

Rules of Civil Procedure regarding summary judgment is a question

of law that this Court reviews de novo review. Bellaire Gen. Hosp.

3 V. Blue Cross Blue Shield of Mich.,

(5th Cir.

1996).

Bally’s motion for summary judgment, though included with

Bally’s February 11, 2001 motion for leave to file summary

judgment, was not permitted to be filed until March 1, 2001. The

court granted summary judgment soon afterward on March 7, 2001.

Hogrobrooks believes the court’s rapid ruling robbed her of time to

respond and cites Judwin Properties, Inc. V. United States Fire

Ins. Co.,

(5th Cir. 1992) for the proposition that a

district court can enter summary judgment sua sponte, provided the

Court gives ten days notice to the adverse party. Hogrobrooks does

not explain why a case discussing rules for granting summary

judgment sua sponte is relevant to this case, where the court below

had before it a motion for summary judgment.1 Nor does she explain

why the plain language of the Federal Rule should not apply. “The

judgment sought shall be rendered forthwith if the pleadings...show

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(c) (emphasis added).

1 Even were this a sua sponte case, Bally’s has a persuasive argument that the goal by Judwin was satisfied in this case. Judwin is premised on the desire to allow parties adverse to a motion for summary judgment the opportunity to make their case to the court before a ruling on the motion. Hogrobrooks informed the court of her intention to not respond to Bally’s summary judgment motion before the court even granted leave to Bally’s to file for summary judgment.

4 B. Sanctions

The imposition of sanctions by the district court is reviewed

for abuse of discretion. Where the basis for sanctions is

tardiness, the Court looks to counsel’s justification for

tardiness. In re Greene,

(5th Cir. 2000) (“When

an attorney fails to appear or makes a delayed appearance, however,

the conduct which is subject to sanction is not the absence itself

but the failure to provide sufficient justification for the absence

or delay.”)

On January 28, 2002, Hogrobrooks appeared forty-five minutes

late to a court-ordered settlement conference. Bally’s requested

sanctions against the Plaintiff for her tardiness on this occasion,

and noted plaintiff’s previous truancy from her own duly noticed

deposition. In her February 17, 2002 letter to the court,

Hogrobrooks declined to respond to the motion for sanctions. The

magistrate judge granted the motion. Only after sanctions were

imposed did Hogrobrooks file an objection to the order and explain

that her tardiness was based upon a miscalculation of travel times.

The magistrate judge deemed this submission as a “motion to

reconsider” and denied it.

By not objecting to the motion for sanctions, Hogrobrooks

waived her claim on appeal that the magistrate judge abused his

discretion when he initially ordered sanctions. On the related

question of whether the magistrate judge abused his discretion when

5 denying the motion to reconsider, Hogrobrooks has failed to provide

any support for her position. Instead, she cited cases discussing

either Rule 11 sanctions or the inherent power of the court to

sanction in the absence of statutory authority. This Court

declines to rule the magistrate judge abused his discretion in

denying Hogrobrooks’ motion in the absence of relevant and

persuasive precedent to the contrary.

III. Conclusion

For the reasons stated, this Court affirms the district

court’s judgment.

AFFIRMED.

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